Filed 6/8/20 Lynch v. Chao CA2/3

NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS

California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for publication or ordered published, except as specified by rule 8.1115(b). This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.

IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

SECOND APPELLATE DISTRICT

DIVISION THREE

SASCHA LYNCH,

Plaintiff and Appellant,

v.

ALLEN Y. CHAO, Ph.D. et al.,

Defendants and Respondents.

B296755

(Los Angeles County

Super. Ct. No. BC703496)

APPEAL from an order of the Superior Court of Los Angeles County, Ramona G. See, Judge. Affirmed.

Sascha Lynch, in pro. per., for Plaintiff and Appellant.

Shook Hardy & Bacon, Alicia J. Donahue, Patrick J. Gregory, and Steve Vieux for Defendants and Respondents Pfizer, Inc., Searle Pharmaceuticals, Inc., Searle Laboratories, G.D. Searle, LLC, Pharmacia Corporation, Allen Chao, Ph.D., Monsanto Company and AmerisourceBergen Corporation.

Morrison & Foerster, Erin M. Bosman and Julie Y. Park for Defendants and Respondents McKesson Corporation.

________________________

Plaintiff Sascha Lynch filed the present action against nine defendants who were developers, manufacturers, and distributors of an intrauterine contraceptive device (IUD) known as Copper 7. The operative first amended complaint (FAC) alleged that plaintiff suffered personal injuries, including infertility and cancer, as a result of her long-term use of the IUD. The trial court sustained defendants’ demurrers to the FAC, concluding the action was untimely and barred by res judicata, and plaintiff appealed.

We affirm. As we discuss, plaintiff has failed to provide the court with a complete appellate record, and thus she has forfeited her appellate claims. Alternatively, plaintiff’s action, filed more than four years after plaintiff was on notice of her claims, is barred by the statute of limitations. The trial court therefore properly sustained defendants’ demurrers without leave to amend.

FACTUAL AND PROCEDURAL BACKGROUND

Plaintiff (born in 1954) had a Copper 7 IUD implanted for contraceptive purposes in 1984 or 1985. The IUD’s intended useful life was three years. Plaintiff believed that the IUD had been spontaneously expelled from her uterus at some unspecified time, but in 2002, when plaintiff sought medical treatment for pelvic pain and failure to conceive, an ultrasound revealed the IUD was still in her body. The IUD was surgically removed, and subsequent exams revealed masses and abnormalities in plaintiff’s endometrial cavity. Plaintiff was diagnosed with endometrial cancer in January 2014 and required a hysterectomy.

Plaintiff filed three separate actions for injuries resulting from her 17-year use of the IUD. Her first and second actions (Lynch I and Lynch II, respectively) were filed in 2005 and 2015, and her third action, filed in 2018, is the subject of the present appeal. We summarize the relevant procedural history.

A. Lynch I (2005)

In 2005, plaintiff sued defendant Pfizer, Inc. (Pfizer) in a New York district court. The operative complaint, which asserted causes of action for negligence, misrepresentation, and breaches of warranty, alleged plaintiff had become infertile as a result of her long-term use of the IUD. After the district court granted plaintiff’s motion to transfer the case to California, Pfizer filed a motion for summary judgment. The district court granted summary judgment, concluding that plaintiff’s action was time-barred and plaintiff lacked competent evidence of causation. The Ninth Circuit affirmed the grant of summary judgment.

B. Lynch II (2015)

Plaintiff filed a second action against Pfizer in federal district court in December 2015, alleging that she suffered additional harms, including cancer, as a result of her use of the IUD. The district court dismissed the action, concluding it was barred by res judicata because it alleged the “same cause[s] of action stemming from the same alleged personal injury, resulting from the same alleged product defect, under the same legal theories” asserted in Lynch I. Alternatively, the court found plaintiff’s claims were time-barred because even if plaintiff did not learn of her endometrial cancer until January 2014, her knowledge of “cysts and abnormalities for a decade and a half prior to bringing this suit” put her on inquiry notice of all of her claims.

In April 2017, the Ninth Circuit affirmed the dismissal, concluding plaintiff’s action was time-barred because plaintiff was “on inquiry notice of her injury more than two years before filing this suit.” The United States Supreme Court denied plaintiff’s petition for writ of certiorari in March 2018.

C. Present Action (2018)

Plaintiff filed the present action against Pfizer and eight other defendants in April 2018. The operative FAC, which asserts causes of action for negligence/products liability, strict products liability, fraudulent concealment, negligent misrepresentation, intentional concealment, false labeling, breach of implied warranty, and intentional infliction of emotional distress, alleges plaintiff suffered personal injuries, including cancer, as a result of her use of the IUD. The FAC further alleges this action is timely because the applicable statutes of limitations were tolled during the pendency of Lynch II, and this action is not barred by res judicata because plaintiff’s prior cases did not result in “final judgment[s] on the merits.”

Defendants demurred to the FAC, contending that plaintiff’s claims (1) were barred by res judicata because they asserted violations of the same “primary right[s]” asserted in Lynch I and Lynch II, and (2) were time-barred because plaintiff learned of her cancer diagnosis no later than January 2014, more than four years before she filed the present suit.

Plaintiff opposed the demurrers, asserting res judicata did not bar her claims because the prior dismissals were not adjudications on the merits and her endometrial cancer was a distinct second injury. Plaintiff also contended that the present case “relat[ed] back” to the date of filing of Lynch II, which was timely filed within two years of plaintiff’s discovery of her cancer.

On March 1, 2019, the trial court sustained defendants’ demurrers without leave to amend, concluding that plaintiff’s claims were time-barred and precluded by res judicata. With respect to res judicata, the court found all demurring defendants were “in privity with Pfizer, Inc.” (the sole defendant in Lynch I and Lynch II), the present action alleged violations of the same primary rights as the prior actions, and Lynch I and Lynch II had been adjudicated on the merits. With regard to the statutes of limitations, the court found the applicable limitations periods ranged from two to four years, and plaintiff was on inquiry notice of her claims by at least 2008. Moreover, even if plaintiff’s claims did not accrue until plaintiff received her cancer diagnosis in January 2014, her action, filed more than four years later, was untimely, and the statutes of limitations were not equitably tolled.

Plaintiff timely appealed.

DISCUSSION

Plaintiff contends the present action is timely because her current claims did not accrue until her January 2014 cancer diagnosis, and the applicable statutes of limitations were tolled during the pendency of Lynch II. Plaintiff also contends her prior actions do not bar the present action because the federal court decisions were not “final adjudication[s]” on the merits, and her current action is based on a separate and distinct injury.

As we discuss, plaintiff did not provide this court with a complete appellate record, and thus she has forfeited her appellate claims. Alternatively, plaintiff’s action, filed more than four years after plaintiff was on notice of her claims, is barred by the statutes of limitations. We therefore affirm the order of dismissal.

A. Appealability

We begin by considering whether plaintiff has appealed from an appealable judgment or order. Plaintiff purports to appeal from the trial court’s order sustaining the demurrers without leave to amend. Such an order “is usually not immediately appealable, because it is not on its face a final judgment.” (Thaler v. Household Finance Corp. (2000) 80 Cal.App.4th 1093, 1098.) Nonetheless, where an order sustaining a demurrer fully disposes of a case and the parties treat the order as a judgment, appellate courts routinely “ ‘deem[ ] the order sustaining the demurrer to incorporate a judgment of dismissal and interpret[ ] plaintiffs’ notice of appeal as applying to such dismissal.’ ” (O’Grady v. Merchant Exchange Productions, Inc. (2019) 41 Cal.App.5th 771, 776, fn. 3 (O’Grady); see also Sisemore v. Master Financial, Inc. (2007) 151 Cal.App.4th 1386, 1396 [deeming an order on a demurrer to incorporate a judgment of dismissal where “[t]he only step left to make the order appealable was the formal entry of a dismissal order or judgment”]; Villery v. Department of Corrections & Rehabilitation (2016) 246 Cal.App.4th 407, 412 [unsigned minute order sustaining demurrer without leave to amend deemed to include appealable final judgment]; Parker v. Robert E. McKee, Inc. (1992) 3 Cal.App.4th 512, 514, fn. 1 [construing order sustaining demurrer to include a judgment “[i]n the interest of judicial economy”].)

Here, the order sustaining the demurrers disposed of the entire case, and all parties have treated the order as a final judgment. Moreover, it would “be inefficient to dismiss the appeal, order the trial court to enter a judgment of dismissal on the sustained demurrer, and then permit a subsequent appeal from the dismissal. [Citation.]” (O’Grady, supra, 41 Cal.App.5th at p. 776, fn. 3.) We therefore will deem the order sustaining the demurrers to incorporate a judgment of dismissal.

B. Inadequate Appellate Record

“Under well-established rules of appellate procedure, . . . the appellant . . . has the burden to provide an adequate record on appeal and to affirmatively show error.” (In re Marriage of Deal (2020) 45 Cal.App.5th 613, 622; Osgood v. Landon (2005) 127 Cal.App.4th 425, 435 [“It is the appellant’s affirmative duty to show error by an adequate record”].) “ ‘Failure to provide an adequate record on an issue requires that the issue be resolved against [the] appellant. [Citation.]’ [Citation.] This principle stems from the well-established rule of appellate review that a judgment or order is presumed correct and the appellant has the burden of demonstrating prejudicial error.” (Hotels Nevada, LLC v. L.A. Pacific Center, Inc. (2012) 203 Cal.App.4th 336, 348.)

In order for this court to review plaintiff’s contention that the trial court erred in sustaining defendants’ demurrers, the appellate record must contain, at a minimum, the operative complaint, the demurrers, and any documents filed in support of the demurrers. Plaintiff included in the appellate record the operative complaint and defendants’ demurrers , but she did not include any of the documents filed in support of the demurrers. These documents are, among others, McKesson’s request for judicial notice (which was granted by the trial court), declarations filed by McKesson, Searle, and AmerisourceBergen, and some of the defendants’ amended demurrers and reply briefs. As such, she has not provided an adequate appellate record for our review, and her claims therefore are deemed forfeited. (E.g., Wagner v. Wagner (2008) 162 Cal.App.4th 249, 259.) We cannot say the trial court’s order sustaining the demurrers was erroneous if we are unable to review all of the papers defendants filed in support of the demurrers.

C. Plaintiff’s Claims Are Untimely

Although plaintiff’s failure to provide an adequate appellate record forfeits her appellate claims, we nonetheless exercise our discretion to consider on the merits plaintiff’s contention that the trial court erred by sustaining the demurrers. “In reviewing an order sustaining a demurrer, we assume well-pleaded factual allegations to be true and examine the complaint de novo to determine whether it alleges facts sufficient to state a cause of action on any legal theory.” (Kyablue v. Watkins (2012) 210 Cal.App.4th 1288, 1292.) “When a demurrer is sustained without leave to amend, ‘we decide whether there is a reasonable possibility that the defect can be cured by amendment: if it can be, the trial court has abused its discretion and we reverse; if not, there has been no abuse of discretion and we affirm. . . .’ ” (Kan v. Guild Mortgage Co. (2014) 230 Cal.App.4th 736, 740–741.)

Plaintiff concedes that her causes of action accrued, at the latest, when she received her cancer diagnosis in January 2014, and she agrees that the longest possible limitations period applicable to her claims is the four-year “catch-all” limitations period of Business and Professions Code section 17208. Thus, because plaintiff did not file the present action until April 2018, more than four years after her cancer diagnosis, her claims are time-barred.

Plaintiff concedes that she filed this action more than four years after her causes of action accrued, but she urges her claims are timely because the statute of limitations was tolled during the pendency of Lynch II by the supplemental jurisdiction provision of Title 28 United States Code section 1367 (section 1367). Section 1367 provides that in any civil action of which the district courts have original jurisdiction, “the district courts shall have supplemental jurisdiction over all other claims that are so related to claims in the action within such original jurisdiction that they form part of the same case or controversy under Article III of the United States Constitution.” (28 U.S.C. § 1367(a).) A district court may decline to exercise supplemental jurisdiction if, among other things, the claim raises a novel issue of state law or the district court has dismissed all claims over which it had original jurisdiction. (28 U.S.C. § 1367(c).) If a district court declines to exercise supplemental jurisdiction, the period of limitations “shall be tolled while the claim is pending and for a period of 30 days after it is dismissed unless State law provides for a longer tolling period.” (28 U.S.C. § 1367(d); Artis v. District of Columbia (2018) 583 U.S. __ [138 S.Ct. 594, 599].)

Based on the latter provision, plaintiff contends her action is timely because it was filed within 30 days of the Supreme Court’s denial of certiorari in Lynch II. But the tolling provision of section 1367 applies, by its own terms, only to claims as to which a district court has supplemental jurisdiction. Here, the district court’s jurisdiction was not supplemental; to the contrary, the court exercised original jurisdiction based on diversity of citizenship as to all of plaintiff’s claims. (See 28 U.S.C. § 1332.) Moreover, the district court did not decline to exercise jurisdiction over plaintiff’s claims; it expressly exercised jurisdiction and dismissed plaintiff’s claims on statute of limitations and res judicata grounds. The tolling provision of section 1367(d), therefore, does not apply. (See 28 U.S.C. § 1367(d).)

Plaintiff alternatively contends that her claims are saved by California’s “equitable tolling” doctrine. “Equitable tolling is a judicially created doctrine that, where applicable, will ‘ “suspend or extend a statute of limitations as necessary to ensure fundamental practicality and fairness.” ’ (McDonald v. Antelope Valley Community College Dist. (2008) 45 Cal.4th 88, 99 (McDonald).)” (Long v. Forty Niners Football Co., LLC (2019) 33 Cal.App.5th 550, 554–555 (Long).) As with other general equitable principles, the doctrine of equitable tolling “is applied flexibly to ‘ensure fundamental practicality and fairness.’ ” (J.M. v. Huntington Beach Union High School Dist. (2017) 2 Cal.5th 648, 658.)

A plaintiff seeking the benefit of equitable tolling must show three elements: “ ‘ “timely notice, and lack of prejudice, to the defendant, and reasonable and good faith conduct on the part of the plaintiff.” ’ (McDonald, supra, 45 Cal.4th at p. 102.)” (Long, supra, 33 Cal.App.5th at p. 555.) “ ‘Broadly speaking, the doctrine applies “ ‘[w]hen an injured person has several legal remedies and, reasonably and in good faith, pursues one.’ ” ’ ” (Ibid., quoting McDonald, at p. 100.) The doctrine does not apply, however, where, as here, a plaintiff fully litigates an action in one forum and then files a nearly identical lawsuit in a second forum. (See Long, at pp. 555–557 [equitable tolling did not apply where plaintiff almost fully litigated a state case before filing an identical action in federal court; “the doctrine of equitable tolling was not intended to burden a defendant or the courts with having to repeatedly restart litigation of a case that was almost fully adjudicated, simply because the plaintiff had a last-minute change of mind about the forum”].)

None of the authorities plaintiff cites supports the proposition that equitable tolling applies to a factual situation even remotely similar to hers. (See, e.g., Morales v. City of Los Angeles (2000) 214 F.3d 1151, 1155 [42 U.S.C. § 1983 actions alleging police misconduct in previous lawsuits were not time-barred because the subsequent action did not accrue until judgments were entered against plaintiffs in the prior actions]; Pearson Dental Supplies, Inc. v. Superior Court (2010) 48 Cal.4th 665, 673–675 [pursuant to Code Civ. Proc., § 1281.12, time to initiate arbitration was tolled while plaintiff pursued court action]; Hardy v. America’s Best Home Loans (2014) 232 Cal.App.4th 795, 806–807 [penalty dismissal under Fed. Rules Civ. Proc., rule 41(b), for failure to obey court order had no collateral estoppel effect].)

Thus, for all of these reasons, the trial court correctly concluded that plaintiff’s claims are time-barred.

D. No Abuse of Discretion in Denying Leave to Amend

“An order sustaining a demurrer without leave to amend will constitute an abuse of discretion if there is any reasonable possibility that the defect can be cured by an amendment.” (Careau & Co. v. Security Pacific Business Credit, Inc. (1990) 222 Cal.App.3d 1371, 1387.) “The burden is on the plaintiff[ ] to demonstrate that the trial court abused its discretion and to show in what manner the pleadings can be amended and how such amendments will change the legal effect of [the] pleadings.” (Id. at p. 1388.)

Plaintiff does not establish that an amendment would cure the fatal defect presented by the expired statutes of limitations. (See Yee v. Mobilehome Park Rental Review Bd. (1998) 62 Cal.App.4th 1409, 1429 [leave to amend properly denied where claims were barred by limitations statutes].) Accordingly, the trial court did not abuse its discretion in sustaining the demurrer without leave to amend.

DISPOSITION

The order of dismissal is affirmed. Plaintiff’s request for judicial notice, filed February 27, 2020, is granted as to exhibits B, C, and E, and is otherwise denied. Defendants are awarded their appellate costs.

NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS

EDMON, P. J.

I concur:

EGERTON, J.
LAVIN, J., Concurring and Dissenting:

The parties have advised us that no judgment of dismissal has been entered as to any defendant. Further, the order from which Sascha Lynch purports to appeal, a minute order sustaining demurrers without leave to amend, was not signed by the trial court and made no reference to dismissing the case against any defendant. Accordingly, the challenged order is not an appealable order. (Leader v. Health Industries of America, Inc. (2001) 89 Cal.App.4th 603, 611.) In the absence of an appealable judgment or order, we have no jurisdiction to entertain the appeal. (See Code Civ. Proc., § 904.1; Hill v. City of Long Beach (1995) 33 Cal.App.4th 1684, 1695.) Although Lynch’s appeal is defective for other reasons, I would dismiss the appeal for lack of jurisdiction.

LAVIN, J.